Long one of the fastest growing commuter suburbs in the San Joaquin Valley, the City of Tracy is about to see a dramatic reduction in development. Because of a growth-limiting initiative approved by voters in 2000, and the city's implementation of that initiative, housing development in Tracy is likely to drop by 80% to 90%, and might not return to a higher level for nearly a decade. It's a stunning turn for the growth-friendly city just over Altamont Pass from the Bay Area. And it's a turn that worries the development and business communities. “It could have been addressed a little bit more rationally,” Tracy Chamber of Commerce Chief Executive Officer Mike Schmidt said. “Sometimes I think we're our own worst enemy. The City of Tracy didn't listen when the citizens were screaming about the pace of growth.” That pace has been rapid for the western San Joaquin County city. In 25 years, Tracy's population has quadrupled to nearly 80,000. For years, growth was essentially unchallenged. But the growth wars started during the mid-1990s. Twice voters rejected growth-control ballot measures before approving Measure A in November 2000. The initiative was complex, but the major thrust was to place a 600-per-year cap on both “residential growth allocations” and new housing building permits. At the time, the city was permitting the construction of more than twice that many housing units, nearly all of which were suburban-style, single-family homes for people commuting to the Bay Area. With Measure A in place, the battle then moved to implementation. Siding with developers, city officials insisted that Measure A had no impact on vested projects. So the city continued to issue large numbers of both residential growth allocations - which allow a developer or landowner to apply for a building permit - and actual building permits. However, the city is counting residential growth allocations and building permits for vested projects in a 10-year average, which Measure A permits so long as the average does not top 600 per year. The vested projects are nearing build-out. Still, after awarding residential growth allocations in excess of 1,200 per year for four years - and building permits in excess of 1,200 for five years - the city was faced with making a drastic reduction to reach an average of 600. This year, the city made available only 100 residential growth allocations (RGAs), which the city's Growth Management Review Board awarded in March. The board also gave seven RGAs to projects that vested before Measure A's adoption, and 10 RGAs to an affordable housing project, for a total of 117. Developers sought a total of 270 RGAs. Until this year, the city awarded RGAs based on a project's entitlement status, explained Senior Planner Vicki Lombardo. In January, however, the city amended its growth management ordinance to change the RGA criteria. “We have this competitive process that we didn't use to have before,” Lombardo said. Entitlement status remains a factor. But the city also ranks projects based on location - infill projects, especially in the downtown, are favored - affordability, housing type - multi-family wins over single-family - and project design. The method is comparable to methods used in the approximately 50 other cities in the state that have similar residential caps. Nevertheless, developers who have been working in Tracy do not like the city's new system. The Building Industry Association (BIA) of the Delta has been lobbying the city to modify its growth management ordinance, and has been urging the state Department of Housing and Community Development to reject the city's draft housing element because of the new limitations. “To go from 1,000 units down to 100 units, what you are going to see is an economic meltdown for the city,” contended John Beckman, government affairs director for the BIA of the Delta. “Even building at 1,000 units a year, the demand is outpacing the supply.” The builders' organization insists that Measure A did not apply to vested projects; therefore, the city should not count RGAs awarded to those projects in meeting the average of 600 RGAs and building permits. “If you remove that one component, it's a moderately acceptable ordinance,” said Beckman, who insisted the group is trying to compromise. “We're the building industry and we're saying it's OK to place a cap of 600 units from now on in the City of Tracy.” However, Mark Connolly, a Tracy attorney who wrote Measure A, said developers have only themselves to blame. "The city and developers chose to build 1,200 homes per year," Connolly said. "The developers sued to do it, and the city sided with the developers. Measure A has acted exactly as intended. Had the city chosen -- which it had the legal right to do -- to slow down to 600 homes per year beginning in 2000, then we would be building 600 per year. Since the city and developers got gluttonous and built 1,200 per year, we are now going to slow down to 250 per year to let us deal with our lack of schools, parks, open space, jobs and excessive traffic. " The BIA argues that limiting development to, essentially, 100 infill units per year means Tracy will not be able to meet its fair share of the regional housing need. So far, the state has not approved Tracy's draft housing element, which must explain how the city is going to meet its fair share. City officials, however, point out that Measure A allows up to 150 additional RGAs annually for projects that are fully affordable - 12.5% affordable to very low- and low-income residents, and 87.5% affordable to moderate-income people. If the city receives additional applications for affordable development, the city has the authority to move the projects forward, Lombardo said. Of the 270 RGAs that developers sought this year, nearly all applications were for market-rate, single-family houses. That probably is not surprising considering that the median price for a house in Tracy is nearly $550,000, roughly double the median price when voters approved Measure A. However, developers that specialize in affordable housing are starting to shop around for land in Tracy, said Ellen Gripp, manager of the city's Community Development Agency. One problem, though, is that most available properties are too large, she said. “There is substantially more interest, and I'm seeing myriad developers,” said Gripp. Still, traditional, market-rate developers have followed through with few affordable housing applications to date, she said. The Chamber's Schmidt worries about a local economic downturn striking Tracy during the next year or two. Schmidt, a former banker, figures that construction of a new housing unit generates $200,000 for the local economy. Using a conservative multiplier of three, construction of 1,000 units means $600 million for the local economy. Thus, a 90% reduction in housing construction could equate to a hit of half a billion dollars for the local economy. Schmidt, however, puts some of the blame on city officials. For years, he said, they refused to listen when residents complained about the pace and type of growth in Tracy. Instead of putting modest limits on growth and encouraging development of multi-family units and “step-up” units that locals could afford, the city allowed rapid development of large homes aimed expressly at Bay Area commuters, Schmidt said. “We haven't built any affordable housing. We haven't built any senior housing,” said Schmidt. “We haven't built any housing for our internal workforce.” The city hoped that by providing housing for Bay Area workers, the city could encourage Bay Area businesses to relocate to Tracy. Thus far, however, Tracy has drawn little besides retail stores and warehouses (see , November 2001). Tracy's loss might be a gain for nearby jurisdictions. San Joaquin County and northern Stanislaus County remain the primary relief valve for Bay Area growth pressure, even though the commute on Interstate 580 over Altamont Pass has become one of the region's worst. And Tracy's neighbors are not only growth-friendly, but they have actually approved large-scale projects that have only begun development. For example, the 16,000-unit Mountain House project in unincorporated San Joaquin County is less than 10% built. The City of Lathrop has approved nearly 20,000 housing units since early 2003. Assuming its current policy remains in place, Tracy may not return to 600 RGAs a year until 2013, Lombardo said. Some people hope to raise the number by 2011, but because building permits lag RGAs, and because Measure A places a cap on both, 2013 is more likely, she said. Contacts: Victoria Lombardo, City of Tracy Planning Division, (209) 831-4620. Ellen Gripp, City of Tracy Community Development Agency, (209) 831-4630. John Beckman, Building Industry Association of the Delta, (209) 235-7831. Mike Schmidt, Tracy Chamber of Commerce, (209) 835-2131.

The City of Los Angeles's general plan framework has survived a second lawsuit filed by neighborhood activists, who won an earlier round against the city. In the latest round of litigation, the Second District Court of Appeal rejected arguments that the city had violated the California Environmental Quality Act (CEQA) and had adopted an internally inconsistent general plan. The court found that many of the issues raised by neighborhood groups had been - or should have been - settled during the earlier litigation, so the court refused to consider them. The fight over the Los Angeles general plan is now a decade old. In early 1995, the city published a proposed general plan framework and draft environmental impact report. The general plan framework was intended to guide amendments to the three dozen community plans that compose the city's general plan. The framework addressed land use, housing, circulation and other aspects of the general plan. The city also produced a Transportation Improvement Mitigation Plan (TIMP), as the framework required. The transportation plan called for $12 billion worth of improvements over 20 years. In December 1996, the city adopted a revised framework and certified an environmental impact report, both of which relied heavily on the transportation plan. The politically powerful Federation of Hillside and Canyon Associations sued, and eventually the Second District ruled that the city had made findings regarding traffic mitigation that were not supported because the city admitted it could not fund the transportation plan. ( , 83 Cal.App. 4th 1252; see , November 2000). One year after the appellate court's decision, the city readopted the general plan framework, as well as new CEQA findings and, because not all impacts could be fully mitigated, a revised statement of overriding considerations. By this time, the city had determined that it could fund its share of the TIMP. The city also found that funding from county, state and federal sources was likely but not guaranteed. Because there was no guarantee, the CEQA finding stated that transportation mitigation measures were infeasible. The federation and a group called Coalition Against the Pipeline sued again. Among other things, they argued that the lack of certainty regarding transportation infrastructure rendered the land use and circulation elements inconsistent and “noncorrelative.” The opponents also contended that the city should have revised and recirculated the EIR, that the city's findings on air quality, water resources, wastewater, solid waste, open space and utilities were faulty, and that the 1990 census data used by the city was outdated. Los Angeles County Superior Court Judge David Yaffe ruled for the city. The neighborhood groups appealed, but the same three-judge panel of the Second District, Division Three, that decided the 2000 case upheld Judge Yaffe. In making their argument regarding general plan inconsistency, the neighborhood groups pointed to , (1985) 166 Cal.App. 3d 90. In that case, the court found an inconsistency because the county's land use element allowed for unlimited growth while the circulation element made no provisions for improvements to state highways, or for limiting growth if highway improvements were inadequate. Based on that ruling, the Los Angeles neighborhood groups contended that the city either had to limit population growth or provide measures to manage traffic if the TIMP were not fully funded. The court disagreed. “Contrary to petitioners' argument, the internal consistency and correlation requirements do not require a city or county to limit population growth or provide traffic mitigation measures to ensure that its transportation infrastructure can accommodate future population growth,” Justice Walter Croskey wrote for the court. “The Planning and Zoning Law (Government Code § 65000 et seq.) does not require a city or county to avoid adverse impacts on transportation. Rather, the city has broad discretion to weigh and balance competing interests in formulating development policies, and a court cannot review the wisdom of those decisions under the guise of reviewing a general plan's internal consistency and correlation.” Additionally, the court noted, the city's finding that the TIMP is infeasible “is not a definitive statement that the funds will not be available.” Besides, the finding is not part of the general plan. As for EIR revisions, the neighborhood groups argued that the transportation impact findings amounted to an amendment to the general plan framework, which should have been subject to a new environmental review. But the court ruled that the city did not amend the framework and concluded “that the city's finding that the mitigation measures are infeasible does not result in either new significant environmental effects or a substantial increase in the severity of environmental effects identified in the EIR and does not otherwise trigger the need for a subsequent EIR or a supplement to the EIR.” The court further ruled that the statement of overriding considerations was proper and that impacts to wastewater, solid waste, open space and utilities could not be challenged because they should have been contested during the first round of litigation. Impacts to water resources were unsuccessfully contested during the earlier lawsuit, the court pointed out. “We rejected petitioners' challenge to the EIR in the prior appeal and stated that the city need not revise the EIR unless it substantially changed the project, which it did not do,” Croskey wrote. The Case: , No. B166819, 05 C.D.O.S. 1438, 2005 DJDAR 1925. Filed November 10, 2004. Ordered published by the California Supreme Court on February 16, 2005. The Lawyers: For the federation: Lawrence Teeter, (213) 387-4512. For the city: Susan Pfann, assistant city attorney, (213) 485-6393.

WASHINGTON _ The Supreme Court has spared municipalities from the threat of paying attorneys fees awards for improperly blocking construction of cellphone towers. The unanimous ruling blocked Mark Abrams, a solo telecommunications entrepreneur, from using a broad federal civil rights statute to seek damages and attorneys fees from the City of Rancho Palos Verdes for denying Abrams a permit to construct a second cellphone tower on his property. Instead, the court ruled in the March 22 decision, Abrams could sue only under the Telecommunications Act of 1996, a law generally aimed at reducing regulatory barriers to new communications technologies, including wireless services. That law allows private suits for improper denials of permits for wireless facilities, but sets a short, 30-day deadline for bringing such suits and does not authorize attorneys fees awards. Writing for the court, Justice Antonin Scalia said the specific provisions of the 1996 act “precluded” suit under the broad federal civil rights, 42 U.S.C. § 1983. That act gives individuals a right to sue local governments for “deprivation” of any federal constitutional or statutory right and permits a court to award compensatory damages and attorneys fees. Scalia said that enforcement of the telecommunications law through § 1983 “would distort the scheme of expedited judicial review and limited remedies” established by the Telecommunications Act. He also said that attorneys fees awards in suits brought by “large commercial interests” such as wireless companies could have “a particularly severe impact” on local governments. A Washington lawyer who filed an amicus brief for the League of California Cities, the California State Association of Counties and others called the decision “a great relief.” “Had the case come out the other way, it would have been very expensive for municipal governments every time they guessed wrong with respect to a cellphone tower,” attorney Roy Englert said. “And because it would have been so potentially expensive to deny a permit, it would have tilted the playing field toward granting the permit in cases where they shouldn't be granted.” Abrams, who lives in a low-density residential neighborhood near the peak of the Rancho Palos Verdes peninsula, got into trouble with the city and his neighbors when he sought permission in 1998 to construct a second cellphone tower on his property. He had built a 52-foot-tall tower under a permit granted in 1989 and over the years added several smaller tripod antennas. The city's zoning ordinance allowed noncommercial uses only, but Abrams was also providing two-way radio and signal enhancement services on a commercial basis. After discovery of the apparent violation, the city in July 1999 conducted a public hearing, where several neighbors voiced strong opposition. The city denied the permit. A year later, Abrams filed suit in U.S. District Court in Los Angeles, citing both the 1996 communications law and the broader civil rights statute. Judge Stephen Wilson ruled the city had no basis for blocking the second tower. He called the decision “an act of spite by the community” and issued an injunction ordering the city to grant Abrams a construction permit. Wilson held, however, that the communications law provided the “exclusive” remedy for violations and barred Abrams' request for damages or attorneys fees under the civil rights statute. On appeal, the Ninth Circuit disagreed and sent the case back to the trial court to calculate damages (see , March 2004). Backed by an array of municipal government groups, Rancho Palos Verdes appealed to the Supreme Court. In his opinion, Scalia noted that lower courts were divided on the issue of whether compensatory damages were available under the Telecommunications Act. He left the issue unresolved. Seven justices joined his opinion. In a separate concurrence, Justice John Paul Stevens agreed that the remedies under the communications act were “fundamentally incompatible” with § 1983, but disagreed slightly with Scalia's method of reaching that decision. Englert called the differences in the two opinions “entirely academic.” Rancho Palos Verdes City Attorney Carol Lynch said the decision was good news for all municipalities. Lynch, of Richards, Watson and Gershon in Los Angeles, said she read the decision as eliminating Abrams' opportunity for seeking damages under both the civil rights law and the telecommunications statute, which specifically reserved state land use authority. “We think it is incredibly important because there are many applications being filed in cities and counties throughout the country by a variety of telecommunications providers, usually for cellphone towers,” Lynch said. Faced with the threat of having to pay damages, jurisdictions have simply approved some applications rather than deal with the merits, she said. Press reports, however, have quoted Abrams as saying that he would pursue damages under the Telecommunications Act. The Case: , No. 03-1601, 2005 DJDAR 3348. Filed March 22, 2005. The attorneys: For the city: Jeffrey A. Lamken, (202) 639-7700. For Abrams: Seth P. Waxman, (202) 663-6000. Los Angeles Daily Journal, .

The scenes we see when strolling around the periphery of River Park, a master-planned development in Oxnard, tell us a lot about the history of Ventura County. To the west is the Santa Clara River, a rare unchannelized waterway, representing nature and pre-history, at least for the purposes of our tour. To the northeast we find farmland, still the enduring symbol of Ventura County despite urban development's rapid engulfment of ag land on either side of the Ventura Freeway. To the south, beyond the Ventura Freeway, is a scattering of small homes - from the air they look like seeds tossed in a furrow - that make up one of the city's oldest and most settled Latino neighborhoods. To the north are blocks of warehouses and other industrial buildings on irregularly shaped lots, typifying the strip development found where land is cheap and plentiful, even though Oxnard has long since ceased to be cheap for industrial developers. In the center of this casual, rural-turning-suburban landscape we encounter the future: The highly formal, highly dense, master-planned community of RiverPark. This development, at least in the plan, is so different from its surroundings that it seems like a foreign object - like a mechanized space rover sent by the Elders of Alpha Centauri to surveil this Steinbeckian town ahead of an invasion. I am probably overplaying the incongruity of RiverPark for effect. The project, owned by Shea Homes, has only started construction and is likely to be built in many phases over 15 or so years. By the time RiverPark is complete, the surroundings probably will look very different than they do today. Incongruous or not, however, there can be little doubt that River Park represents the future of Ventura County, given the rapid rate of development along the freeway and the expected population growth in the six county region of greater Los Angeles. In trying to make sense of this big piece of planning, we need to ask two questions. First, how do all the different pieces - housing, office buildings, retail, parking and open space - work together within the site plan? And, second, how well will RiverPark fit into the Oxnard of the future? This is an ambitious project of 700 acres, containing 2,800 homes and nearly 2.5 million square feet of commercial space, including a regional mall of approximately 1 million square feet. The former gravel pits will become water-purification detention basins, in which local runoff collects and percolates through layers of gravel and sand before entering the storm drain. Internally, RiverPark is a fine piece of planning, perhaps all the more admirable for solving some difficult problems, such as the proximity of residential areas to the highly trafficked commercial zone. Part of that solution is to provide the neighborhood a separate, supermarket-anchored retail center immediately north of the mall so that locals can shop without entering the maelstrom of vehicular circulation around the mall. (The Los Angeles office of RTKL designed the master plan for the commercial area of RiverPark.) The residential portion is divided into three “neighborhoods” (we can be thankful, for once, that the developer did not call them villages) that vary in density from seven units per acre up to 80 units per acre. Each of the neighborhoods has its own park and neighborhood-serving retail, usually within a quarter-mile walk of most housing units. The densest housing products are town homes and stacked flats to the south, with the larger and more traditionally suburban housing in the north. The trade-off for this density is a generous amount of open space, which covers nearly 40% of the site. Open-space planning is the most successful part of RiverPark, which has a fully connected greenway system. All the parks are interconnected. Better still, the detention basins are surrounded by landscaping and walkways, so bicyclists and runners can go long distances without meeting cars. New Urbanist architect Peter Calthorpe has observed that most suburban housing developments are straight jacketed by major arterials in all directions. The effect is to confine children on bicycles to small areas no greater than six square blocks, on average. The open-space planning for River Park has effectively solved that problem. But how well will RiverPark fit in with its neighbors? The question remains open. Richard Thompson, the urban planner for A.C. Martin Partners, which led the consultant team for the preparation of the overall master plan, said that he tried to avoid the inward-looking character of the master-planned community. “We tried to make the plan as porous to the outside community as possible,” in some places aligning with existing streets, he said. This desire to fit in with the existing street pattern is an enlightened one that places regional well-being ahead of the short-sightedness of some developers, who would set their projects apart from the rest of the world to achieve “exclusivity.” Unfortunately, RiverPark is already largely isolated from the surrounding community by external factors. The river separates the project from the west, while the freeway walls it off to the south. Developers cannot convert the neighboring farmland without the approval of Oxnard voters. The residential neighborhood to the east is prized by its inhabitants and unlikely to undergo any major change. These combined factors give RiverPark a very limited ability to create an urban pattern that other developments can build on. On the positive side, the city is promoting continuity with a new specific plan for the Wagon Wheel area immediately south of the 101. That plan is to connect Wagon Wheel with RiverPark via three north-south roads, including one that will “fly over” the freeway. That is a meaningful, if limited, gesture to prevent Ventura County from becoming a post-suburban chaos of laissez-faire, developer-driven planning. Here's hoping the city will stick to its better instincts and resist any future attempts by developers to carve up Oxnard into a set of uncontiguous neighborhoods. Turning Oxnard into a set of unconnected master-planned neighborhoods would be bad news for invaders from Alpha Centauri, as well as human beings who seek to live in Oxnard.

State prison officials are moving forward with plans to build a new death row at San Quentin, but elected officials and business interests in Marin County are urging the state to reconsider. Although the state Department of Corrections is scheduled to certify a final environmental impact report for the project this month, Marin County is still seeking a reprieve from the governor's office. A collection of interests in Marin County opposes the project because they believe the project would commit the state to continuing operations at the 153-year-old prison for a long time. The Marin County faction would like to see the prison closed eventually and the site reused for a multi-modal transit hub, housing and parks. "It is a very old facility. It is extremely expensive to operate," said Assemblyman Joe Nation (D-San Rafael). "I think it is a mistake to commit the state to operating that facility for another 100 years, which is what the death row project would do." There is little dispute that San Quentin occupies prime real estate: 432 acres on a point that juts into San Francisco Bay, just south of the Richmond-San Rafael Bridge. The prison has a capacity of about 6,200 inmates and has housed all condemned inmates since 1934. There are nearly 650 inmates who have been sentenced to death at San Quentin, and the number continues to rise by several dozen every year. The state has executed 10 people since the death penalty was reinstated in 1976. There is also little dispute that the state needs a new death row. The existing facility was designed for fewer than 300 condemned inmates, meaning that death row inmates are held in facilities that house a variety of inmates at San Quentin. State prison officials and even prisoner advocates say the current situation is not secure for prisoners, guards or the outside community. In 2003, the Legislature approved $220 million for a death row that could accommodate up to 1,400 male inmates at San Quentin. The 618,0000-square-foot facility on the western-most 40 acres of the prison property would replace a minimum security holding area and support buildings. Last fall, the Department of Corrections released a draft EIR that identified a number of impacts, most of which could be mitigated. One of the primary unmitigated effects would be visual. During the last few months, Corrections has been writing responses to comments and preparing the final EIR, which is scheduled for public release April 11, agency spokeswoman Terry Thornton said. Secretary Rod Hickman likely will certify the final EIR by the end of this month, she said. That would be the last decision in the process, meaning the agency could then seek bids for construction, she said. The Marin County coalition, however, is trying to slow that process. Assemblyman Nation and county Supervisor Steve Kinsey hope to meet with the governor, or at least members of the governor's cabinet, before Hickman approves the environmental document. Kinsey has a counter-proposal for the administration: Temporarily relocate death row to a nearly completed new prison in Delano, but continue carrying out executions at San Quentin. This approach would buy time to re-evaluate San Quentin's future. And if executions continued at San Quentin, politics would be diminished because neither Delano nor any other community outside Marin County would have to deal with the stigma that accompanies the death penalty, he contended. The state is making a "100-year decision," Kinsey said. "At some point, the 150-year-old portion of the property will become better serving as a park and historic site, although that could be years or decades in the future," he said. Kinsey and Nation point to a March 2004 report issued by State Auditor Elaine Howle. The auditor concluded that Corrections officials had not adequately considered alternative locations for a new death row, and that the agency had not considered all relevant cost factors, including higher personnel costs that come with operating a prison in Marin County. But Howle also reported that relocating the prison from San Quentin could cost $337 million more than the state would receive from selling the property - a conclusion that bolstered Corrections. Howle recommended the agency conduct additional analysis. Project detractors contend that their main concern is financial. "We think that it is a very bad economic decision for the region and for the state," Elissa Giambastiani, executive director of the San Rafael Chamber of Commerce, said of the proposed death row project. "They are attempting to build the prison in the most expensive area of the state." Marin County has some of the most expensive housing in the Bay Area, and, in fact, more of San Quentin's employees live in Sacramento County than anywhere else. Because of the economics, San Quentin employees get a $7,000-a-year-stipend, yet the state still struggles to keep the staff full. Besides ongoing operating expenses, construction costs in Marin are extraordinary, Giambastiani said. Nation said that if the state were to close the prison, it could get about $750 million for a 270-acre chunk of the site. With the real estate having such value, some San Quentin neighbors are worried that the prison's closure would assist mostly developers - and that large-scale housing development would exacerbate traffic congestion. Giambastiani said growth fears are unfounded. It is politically impossible to approve a large housing subdivision in slow-growth Marin County, she contended. Additionally, businesses and government entities want the site for a transportation terminal. San Quentin offers a natural deep-water port, which could replace a ferry terminal in nearby Larkspur that requires expensive annual dredging. Also, a proposed Marin-Sonoma rail line would terminate at San Quentin. Both Highway 101 and I-580 are nearby. A transportation hub would have regional benefits, said Nation, who noted that a bridge toll increase approved by Bay Area voters one year ago identified San Quentin as a ferry terminal location. Kinsey said local officials are considering a re-use plan that would involve a large transit station, roughly 1,000 to 1,500 fairly dense housing units (30% of which would be affordable) around the station, and a limited about of commercial and retail development. The shoreline would be open to the public, he said. "We are looking at a transit village, "Giambastiani said. "We are not looking at covering it with million-dollar houses." Still, a new use of the San Quentin property would require a change in state law. As it now stands, the Penal Code requires the state to house condemned inmates at San Quentin. Contacts: Assemblyman Joe Nation, (916) 319-2006. Steve Kinsey, Marin County supervisor, (415) 499-3091. Elissa Giambastiani, San Rafael Chamber of Commerce, (415) 454-4163. Department of Corrections project website: www.corr.ca.gov/FacilitiesManagement/CICP/default.asp State Auditor's report: www.bsa.ca.gov/bsa/summaries/2003-130.html

I've just read the Places article about Santa Monica in the February CP&DR . Morris Newman wrote, "Seeking to maximize its public investment, the city wants to build one or two 12-story residential buildings along the avenue." The city has made no such decision, nor is it seeking a financial return on its investment. The city used redevelopment dollars to purchase the RAND site. Under state law, at least 20% of the value of the project must be dedicated for affordable housing. (The city voluntarily increased this minimum to 30% when it purchased the land.) Accordingly, a residential village has been proposed in the draft Civic Center specific plan. The city has not given final approval to the specific plan. The draft plan (conceptually approved so environmental analysis could occur) proposes a general height limit for the housing village of 56 feet, with the exception of one slender tower up to 120 feet. If this additional height is included in the final plan, and if the tower is built, (both "ifs"), that tower would be adjacent to an existing 1960s-era hotel of approximately the same height. There is no attempt to maximize financial return to the city from this housing village, nor from any other component of the Civic Center. Much of the housing - very likely, the vast majority of it - will be affordable housing. The question has been how much subsidy the city will have to provide, not how much money the city will make. We are currently exploring options for the mix of affordable and market rate housing to see if we can move the project towards one that will minimize required public subsidies. We will be issuing (or have issued) a request for proposals (RFP) for the housing village to a selected list of potential development teams. In approving the RFP, the City Council specifically determined that responses should be evaluated on a number of values, including "minimiz(ing) height when possible or demonstrating clear advantages for taller buildings, if proposed." - Ken Genser, Santa Monica City Council member

The news reports about Measure 37 come blasting out of Oregon almost every day now. Faced with 75 land use claims totaling more than $100 million, Clackamas County in suburban Portland decided to settle the easy ones first - permitting small landowners to subdivide their property into a few additional lots. The City of Eugene is considering an ordinance that would require some development to be torn down after a property changes hands. Crook County, in sparsely populated eastern Oregon, decided to charge Measure 37 claimants the same fee as other development applicants - and then sued itself in hopes of clarifying the claims process. Multnomah County sought to get around Measure 37 by declaring that "a further division of real property is not a land use.” The county then permitted the measure's 92-year-old “poster child” to divide her 19-acre property into eight lots. In the Columbia River Gorge, there is a dispute over whether Measure 37 applies to restrictions imposed by a regional agency created by federal legislation. Six months after the nation's most far-reaching property rights measure received 61% of the statewide vote, the consensus throughout Oregon seems to be clear: Measure 37 sent a message to the government, but it has unleashed a flurry of confused activity unparalleled since the passage of Proposition 13 in California almost 30 years ago. The Oregon law requires government agencies to permit longtime property owners to subdivide their property or else receive full compensation, but it leaves the administrative details to the local governments, most of which do not like Measure 37 and wish it had not passed. At the same time, Measure 37's passage has emboldened property rights activists elsewhere to introduce similar bills. So far, no one in California seems to be mounting an initiative campaign. But in February, state Sen. Bill Morrow (R-Oceanside) introduced SB 725, which is similar to Measure 37. The bill is sitting in the Senate Judiciary Committee and is unlikely to go anywhere in the Democratic-controlled Legislature. Like Proposition 13, Measure 37 was borne of populist resentment against big government, and its basic idea is simple: When the government passes a regulation that reduces the value of someone's property, the government should pay compensation - or else allow the landowners to develop their property as they would have been permitted to do under the old rules. The measure was opposed by most influential political figures and organizations, including many business groups. The opponents outspent the proponents. And, of course, the measure was on the ballot in Oregon, which has had the toughest state planning law in the country for more than 30 years. Even with all that, Measure 37 got 61% of the vote last November. Since then, local governments - especially counties, where subdivision has been held in check by the state land use law - have received hundreds of claims from property owners whose plans for subdivision have long been stymied. This huge pent-up demand resulted in large part from the state's land-use law, which essentially prevents residential subdivision of farm and forest lands if they are located outside an area's urban growth boundary. This provision is the very essence of the Oregon land-use law, intended to protect working landscapes from sprawling subdivision and to drive urban development inside the growth boundaries. Many of the claims are garden-variety requests for a few hundred thousand dollars and involve a dispute over subdividing one parcel into a few more. Other claims have been whoppers. In Bend, a hay-farming family asked for $37 million or the right to build 227 houses on 1,100 acres of land. In Hood River, a pear-farming family has asked for $57 million or the right to build 842 homes. Some local governments have talked tough. In Multnomah County, where Portland is located, the county attorney concluded that restricting subdivision of land is not restricting land use and therefore is not covered by Measure 37. “A of land is the employment of land for a particular purpose (e.g. residential, commercial, farm, forest),” wrote Assistant County Attorney Sandy Duffy. “The Oregon Court of Appeals has recognized that platted but undeveloped land is not regarded as a 'use' in zoning law. ( ). It follows that the process of subdividing land would not be a 'use' of land either.” But Duffy's opinion, issued on March 14, did not prevent the Multnomah County Board of Commissioners from permitting 92-year-old Dorothy English to subdivide her property only three days later. Prohibited by law from developing the family farm, English had been the spokeswoman for the Measure 37 campaign. And early reports suggest that, despite lots of tough talk, most local governments are taking this same path of least resistance: Permit the subdivision rather than fight the claim or pay the money. This is not surprising considering that Measure 37 did not create any new source of funds for government agencies to pay the claims. But the manner in which development may be permitted is cause for concern. Taking its cue from , 505 U.S. 1003 (1992), Measure 37 states that if the government imposes a land-use regulation that reduces the market value of any property, the property owner has the right to develop under the old land use regulation or else receive compensation. (Again following cue, Measure 37 exempts public nuisances, hence leading jurisdictions such as Eugene to consider such development a nuisance.) But there are a couple of other wrinkles in Measure 37. One is the fact that families are grandfathered into the law. If a property has been in the same family for 100 years, all regulations adopted since 1905 do not apply. In relevant terms, this means that families who have owned property for 30-plus years can get out from under the state's land use law. The second is that the law provides no requirement for public hearings or public review prior to granting the development approval. Local governments are adopting such procedures, but, in some cases, landowners will probably receive permission to subdivide with less public review than would have been the case decades ago. To property rights activists, Measure 37 is the latest and most dramatic in a growing string of victories. Similar, though less stringent, laws have been passed in states like Texas, but there has been little pent-up demand for claims there. Yet the Measure 37 victory in Oregon may represent a double-edged sword. It holds the potential to be so disruptive that it could backfire. Various legislative changes to the initiative are in the works, and the backlash could lead to a bill or court ruling that punctures the fabric of the measure, especially if counties continue to give in to subdivision. That may mean that getting such a measure passed in California will be harder - unless voters decide they do not care about creating another post-initiative administrative nightmare.

A lawsuit challenging a mitigated negative declaration for a conditional use permit in the City of Irvine cannot go forward because the plaintiff did not serve the city with the lawsuit within 90 days, the Fourth District Court of Appeal has ruled. Royalty Carpet Mills filed the lawsuit after the city approved a conditional use permit for a proposed 132-unit apartment complex. However, 97 days passed before Royalty personally served the city. That was too long, the court ruled. In 2002, Essex Property Trust applied for a conditional use permit to develop an apartment project in an industrial area of Irvine. When the city issued a notice to adopt a negative declaration for the project, Royalty submitted extensive comments objecting to construction of residences close to its carpet manufacturing plant. The Irvine Planning Commission denied the permit application and refused to adopt the negative declaration, finding that the project was incompatible with the area's industrial land uses and that the environmental document did not address issues raised by the public. Essex appealed to the City Council, and on May 13, 2003, the council adopted a mitigated negative declaration and approved a conditional use permit. On May 21, the city filed a notice of determination for the project. On June 20, 2003, Royalty filed its lawsuit and served by mail both the city and Essex with a notice of commencement of proceedings, a verified petition for writ of mandate, and a request for preparation of the record of proceedings. On June 27, Royalty personally served the documents on Essex. But Royalty did not personally serve the city until August 18, one working day after the city faxed a letter to Royalty demanding dismissal of the lawsuit. Orange County Superior Court Judge Ronald Bauer ruled that Royalty had missed the deadline and he dismissed the case. Essex appealed, but the Fourth District upheld the lower court. The issue was which statute of limitations applied. Royalty argued that a section of the California Environmental Quality Act (Public Resources Code § 21167.6, subdivision (a)) applied. Under that statute, a CEQA lawsuit must be filed within 30 days of a lead agency's decision, and the lawsuit must be personally served within 10 business days of the filing. However, the law does not mandate dismissal for failure to meet the service deadline. Additionally, the city had agreed to Royalty's request for relief from the CEQA time requirement. The city argued - and the court agreed - that Government Code § 65009, subdivision (c)(1)(E), controlled. That law applies generally to challenges to a conditional use permit. It requires personal service within 90 days of the date of the decision on a permit, a deadline that may not be extended. “To accomplish the Legislature's purpose of limiting the time in which a decision regarding a conditional use permit can be challenged by filing and serving a petition, in no event can service of the petition be accomplished beyond the 90-day time bar contained in the Government Code,” the court ruled. “To conclude otherwise would be to ignore the absolute limitations bar contained in Government Code § 65009.” Royalty argued that its challenge was to the environmental review, and the company tried to amend its lawsuit. But the court did not buy it. “The amended petition would have sought the same relief - stopping the project until an EIR was prepared,” the court ruled. The Case: , No. G033763, 05 C.D.O.S. 524. Filed January 18, 2005. The Lawyers: For Royalty: Daniel Hyde, Lewis, Brisbois, Bisgaard & Smith, (213) 250-1800. For the city: Joel Kuperberg, Rutan & Tucker, (714) 641-5100. For Essex Property Trust: Roger Grable, Manatt, Phelps & Phillips, (714) 371-2500.

An airport land use compatibility plan that discourages housing development on thousands of acres is a “project” that requires a review of potential environmental impacts, the First District Court of Appeal has ruled. The court ruled for a large landowner near Travis Air Force Base in Solano County. Muzzy Ranch Company, which owns 5,000 acres, had challenged the Solano County Airport Land Use Commission's determination that an airport land use compatibility plan was exempt from the California Environmental Quality Act. The court ruled: “As it is presently unclear how adoption of the TALUP will affect the environment, it is undeniable that placing a vast area of land largely off-limits to future residential development will have long-term impacts on the use of land and population distribution in the region. As with adoption or amendment of a general plan, the application of CEQA to adoption of the TALUP 'comports with the policy that the environmental consequences of a proposed activity, whether public or private, be considered at the earliest possible stage.'” The court cited § 15013 of the CEQA Guidelines. Development around Travis has been controversial for years (see , December 2003; , September 2003). The area is under intense growth pressure, but many people fear that additional development near Travis will force the Air Force to close the base, which is the county's largest employment center. In June 2002, the Solano County Airport Land Use Commission adopted the Travis compatibility plan, or TALUP. Airport land use commissions are required to adopt compatibility plans, and cities and counties are supposed to make their general plans consistent with the compatibility plans. In June 2002, airport land use commissions were authorized - but not required - to adopt compatibility plans for military airports. Later that year, the Legislature amended the Public Utilities Code to require such plans around military airports. The 2002 TALUP set forth compatibility factors for six geographic zones. At issue in the litigation was “compatibility zone C,” which covered locations exposed to certain levels of noise and occasional airplane flights below 3,000 feet. Compatibility zone C encompassed hundreds of thousands of acres stretching over 35 miles. The TALUP froze development at the level permitted by existing general plan and zoning regulations. Five days after adopting the compatibility plan, the Airport Land Use Commission filed a “notice of exemption” from CEQA. Muzzy Ranch sued, alleging that the Commission violated CEQA and used the wrong noise standard. Solano County Superior Court Judge Donald Fretz ruled for the Commission. On appeal, the First District overturned the lower court on CEQA grounds. Muzzy Ranch argued that the TALUP had the potential for causing indirect environmental impacts by displacing housing development to areas outside of compatibility zone C. The Commission argued that such displacement was too speculative or remote to force an environmental review. The court ruled that the burden of proof fell on the Commission, not Muzzy Ranch. If legitimate questions are raised about significant impacts, an agency cannot exempt a project from environmental review, the court ruled. The Association of Bay Area Governments, the court pointed out, has projected Solano County to be the fastest growing county in the greater Bay Area. “ t is reasonable for appellant to argue that housing construction that would otherwise ultimately occur in that zone will now need to be built elsewhere. … At this first stage in the CEQA review process appellant was only required to present a 'reasonable argument' that adoption of the TALUP has the potential to result in physical changes to the environment,” Justice Linda Gemello wrote for the court. She cited , 54 Cal.App. 4th 106 (see , May 1997), in which the court ruled that adoption of a geologic hazards ordinance was not exempt from CEQA. The First District also rejected the Commission's argument that it could not consider potential housing displacement because the Commission would have to speculate about other agencies' future land use decisions. “Housing displacement is a physical change that may require discussion in an EIR,” Gemello wrote. “Study by the Commission at subsequent stages of the CEQA review process can provide information about the likelihood and scope of such displacement, but the possibility that the displacement effect will be too speculative to gauge with reasonable accuracy is not a basis for concluding that adoption of the TALUP was not a project.” The court also shot down the Commission's argument that adoption of the TALUP was not part of a chain of events that could culminate in physical impacts on the environment. “In this case,” Gemello wrote, “adoption of the TALUP is a conclusive step on the part of the Commission, which will foreseeably lead to some displacement of future development to outside the TALUP areas.” The Case: , No. A104955, 05 C.D.O.S. 349, 2005 DJDAR 378. Filed January 5, 2005. Modified February 8, 2005 at 2005 DJDAR 1565. The Lawyers: For Muzzy Ranch, Richard C. Jacobs, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, (415) 434-1600. For the Commission: James Laughlin, deputy county counsel, (707) 421-6140.

After years of planning, negotiations and political battles, redevelopment of the former Marine Corps base in Tustin is proceeding. A developer is in the midst of building 565 single-family homes, townhouses and “paired homes,” and another 4,000 housing units are on the way. In late February, the Tustin City Council approved a general plan amendment for about 1,500 of those units, clearing the way for the next phase of base redevelopment. In all, 4,600 housing units and 9.2 million square feet of retail, office and industrial space are planned for the closed base in central Orange County. “There has been a lot of progress made in the last 12 months,” said Tustin Assistant City Manager Christine Shingleton. Years of work lie behind the recent progress. The Department of Defense marked the Tustin helicopter base for closure in 1993, and the Marine Corps finally turned out the lights in mid-1999. The city approved a reuse plan in early 2001. The Navy certified that plan, and federal officials eventually handed 977 acres of the 1,600-acre base to the City of Tustin in 2002. Another 150 acres is scheduled to be conveyed after more environmental cleanup is complete, but not before 2008, according to Shingleton. The Navy sold 235 acres directly to two developers, and it was that property that the city entitled in February. For nearly 10 years, Tustin and the Santa Ana Unified School District waged a nasty battle with ethnic overtones about school construction at the site. The Santa Ana district, which is 95% Latino and very crowded, contended that it was entitled to 100 acres of the base for construction of a unique kindergarten-through-community college campus. Tustin, however, long proposed setting aside land for the Tustin and Irvine schools and for the Mission Viejo-based South Orange County Community College District. Tustin city officials vehemently denied there were racial underpinnings for their base reuse plans. Eventually, the city and Santa Ana school officials settled their dispute when Tustin earmarked 37 acres for Santa Ana Unified and the Rancho Santiago Community College District, and agreed to pay Santa Ana Unified $38 million from base redevelopment proceeds (see , October 2001). When Santa Ana Unified concluded that its 22 acres were too contaminated for school construction, Tustin agreed to pay another $22 million and took back the land, apparently ending the dispute. What was never in dispute was the need for housing. Over the years, central Orange County has become job-rich and housing-poor. This is especially true for Tustin's neighbor Irvine, which has more than twice as many jobs as housing units. The first project to get developed is John Laing Homes' Tustin Fields project, which is a mix of old and new Orange County styles. The first phase, which opened in May 2004, is planned to have 376 townhouses, single-family units and paired homes on 32 acres. A second phase of 189 larger single-family houses on 36 acres opened in February. As expected, sales are brisk. “These are ideally located sites in central Orange County, where land is very scarce,” said Dan Flynn, vice president of land acquisitions for Laing. “It was almost a perfect infill site.” The attached units could represent the future of Orange County housing. The three-story townhouses feature alleys and front stoops, and they resemble East Coast brownstones. Containing 3 bedrooms and 3 1/2 bathrooms, the townhouses are proving popular with nontraditional households because unrelated people or members of extended families can have their own living space within one unit, said Linda Mamet, vice president of sales and marketing for Laing. The paired homes are houses of up to 1,900 square feet that share one wall, usually along a kitchen. Because the individual units have different elevations, the common wall is minimized. Thus, the units feel detached - and Laing is able to build about 10 per acre. The single-family houses are a bit more typical for Southern California, with sizes ranging up to 3,400 square feet. Tustin city officials provided density parameters, but they let the developer decide on the mix of housing units. Laing expects to complete the project next year. What the city did insist on was a large affordable housing component. Twenty-one percent of Tustin Fields is designated affordable, with nearly one-third of those units for very low-income families. Townhouses for very low-income buyers (less than 50% of median) start at $78,000. The priciest units for moderate-income families (up to 120% of median) cost $299,000. The city has subsidized the affordable housing by writing down the land by $30 million, Shingleton said. Additionally, the city will own the real estate for 45 years. Thus, “buyers” will get a place to live and tax benefits, but no equity. It is an arrangement that is proving easier to sell to very low- and low-income buyers than to those with median incomes. On a different part of the former base, the city expects to close escrow shortly on an 87-acre parcel on Jamboree Road. Vestar Kimpco Partners is buying the land for development of a 1.1 million-square-foot retail and entertainment complex. The project is planned to include a movie theater, restaurants, and retail stores. Wal-Mart, Costco and Target are likely tenants. In February, the city approved a general plan amendment and zoning changes for 195 acres controlled by a partnership of William Lyon Homes and Lennar Homes. They purchased a total of 235 acres directly from the Navy during a late 2002 auction, with the proceeds of $208.5 million helping to offset the Navy's base cleanup expenses, which are ongoing. Tustin approved 1,545 units in two projects proposed by Lyon and Lennar. The remaining 40 acres lie in Irvine, where the developers plan another 365 housing units. Also scheduled for this year is the renovation of former military housing for use as transitional housing. The city has leased the property to the Orange County Rescue Mission, which plans to open 192 transitional units and 40,000 square feet of offices and community facilities this fall. This month, the Orange County Community College District plans to break ground on a 68-acre “advanced technology education park.” Other education projects planned at the former base are a 15-acre police and fire training facility run by Rancho Santiago CCD, a high school and three elementary schools. Other public uses include an 84-acre regional park and several smaller parks. The biggest chunk of development - an 800-acre specific plan area - remains in the future, however. In 2003, the city approved the specific plan and selected a partnership of Centex and Shea to serve as master developer. The specific plan calls for 2,100 housing units, and 7 million square feet of commercial development. Under the plan, development would include a residential village near a commuter rail station, a large “community core” with a variety of uses, and a 260-acre business park that would provide thousands of jobs. Because the specific plan and a related environmental impact report are complete, the master developer will not have to revisit the entitlement process, and project-level environmental review should be minimal, Shingleton said. The bigger issue is infrastructure, as there is very little to build upon in the 800-acre site. The city and the developers are working on a master business plan that should address infrastructure. The city intends to convey the property to Centex and Shea in four or five phases over about seven years, according to Shingleton. Contacts: Christine Shingleton, City of Tustin, (714) 573-3107. Dan Flynn, John Laing Homes, (949) 265-6808. Bill Jacobs, City of Irvine, (949) 724-6521. Base re-use website: www.tustinlegacy.com .

A county may not rely on mitigation measures to determine that a project is categorically exempt from the California Environmental Quality Act (CEQA), the First District Court of Appeal has ruled. “If a project may have a significant effect on the environment, CEQA review must occur and only then are mitigation measures relevant,” the court ruled. “Mitigation measures may support a negative declaration but not a categorical exemption.” The decision appears to mean that Marin County will have to prepare at least a negative declaration for the project in question - the construction of one house in a riparian area. In June 2002, property owner Joshua Hedlund submitted an application for design review of a proposed 3,646-square-foot house on a 7.2-acre lot along San Geronimo Creek. The creek supports a large run of coho salmon, as well as smaller populations of steelhead trout and chinook salmon. The county's Community Development Agency concluded that the project was categorically exempt from CEQA and approved the house subject to conditions intended to protect the riparian habitat. The Salmon Protection and Watershed Network (SPAWN) and the Tomales Bay Association appealed to the Planning Commission, which approved the project with additional mitigation measures. The opponents further appealed to the Board of Supervisors, which upheld the Planning Commission. At roughly the same time the Hedlund application was moving through the administrative process, the county adopted a zoning ordinance that requires discretionary review of construction near streams that have salmon or steelhead populations. In adopting the ordinance, the Board of Supervisors found that discretionary review was necessary to protect the threatened fish species from development on 160 creekside parcels, including Hedlund's. In May 2003, the opponents filed a lawsuit that argued the project was subject to environmental review. Marin County Superior Court Judge Lynn Duryee ruled that the county had “erred procedurally and substantively” in finding the project categorically exempt, a decision that forced Hedlund to halt construction. The county then backed out of the case, but Hedlund appealed to the First District, where a unanimous three-judge panel upheld the lower court. Single-family homes are categorically exempt from CEQA. However, CEQA Guidelines § 15300, subdivisions (a) through (c) list exceptions: when a project may impact an environmental resource of “critical concern,” when the cumulative impact is significant, or when there is a reasonable possibility the project will have an impact because of unusual circumstances. Project opponents argued that all three exceptions applied. The possibility the project would impact a resource of critical concern was enough for the court. “The county itself conceded in the lower court that the project is within an area of 'critical concern' of its own designation,” Justice Patricia Sepulveda wrote for the court. “The relevant issue is thus reduced to whether the project 'may impact' on that environmental resource of critical concern.” Hedlund argued, as the county did at the lower court, that the mitigation measures eliminated any impacts, thus making the project eligible for categorical exemption. But the court said no. “The determination of whether a project may impact a designated environmental resource must be made without reference or reliance upon any proposed mitigation measures,” Sepulveda wrote. “Reliance upon mitigation measures (whether included in the application or later adopted) involves an evaluative process of assessing those mitigation measures and weighing them against potential environmental impacts, and that process must be conducted under established CEQA standards and procedures for EIRs or negative declarations.” Hedlund's attorney, Anne E. Mudge, said the case was decided partly on the definition of “mitigation measures.” What the court called “mitigation measures,” she called “project features” that were intended to ensure the project would not have a significant impact. The court relied heavily on , 52 Cal.App.4th, 1165 (see CP&DR Legal Digest, March 1997), in which the court ruled that reopening an old garbage dump was not categorically exempt. “As the court observed,” Sepulveda wrote, “there are sound reasons for precluding reliance upon mitigation measures at the preliminary stage of determining eligibility for a categorical exemption. Regulatory guidelines … 'contain elaborate standards - as well as significant procedural requirements - for determining whether proposed mitigation will adequately protect the environment and hence make an EIR unnecessary; in sharp contrast, the guidelines governing preliminary review do not contain any requirements that expressly deal with the evaluation of mitigation measures.' An agency should not be permitted to evade standards governing the preparation of a mitigated negative declaration 'by evaluating proposed mitigation measures in connection with the significant effect exception to a categorical exemption.'” Although it did not participate at the First District, the county has asked the state Supreme Court to review the case because of concerns about the future use of categorical exemptions. The property owner is not part of that appeal. “I think it's not the death knell for categorical exemptions,” Mudge said of the decision. “This was a project with a difficult administrative record on a stream that is sensitive.” The Case: , No. A105592, 05 C.D.O.S. 521, 2005 DJDAR 677. Filed December 16, 2004. Modified and ordered published January 18, 2005. The Lawyers: For SPAWN: Michael Graf, (510) 525-7222. For the property owner: Anne E. Mudge, Stoel Rives, (415) 617-8900.

Here is a list of one-liners about suburbia, inspired by comedian Jeff Foxworthy, originator of the popular “you-know-you're-a-redneck-when” jokes. You know you're in suburbia when: o The only ethnic restaurants you can find are Italian and Chinese. o The churches are all bunched together in a “religious-use” district. o The synagogues have no Hebrew lettering on them, only English transliterations that make sense in no language whatsoever. o Nobody approaches you in a supermarket parking lot asking if you want auto-body work done on the cheap. o All of the construction is on the edge of town and not on infill sites. The last comment was certainly true, until recent months, of the City of Dublin. A suburban outpost in the East Bay's Tri-Valley area, Dublin is a booming city made up largely of recently built housing and commercial buildings. In contrast to the charming row houses and shingle-style homes of the older cities in the region, Dublin looks as if it could have been designed in Orange County and built by a developer who couldn't read a map. But enough suburbia jokes, which are not only impertinent but quite possibly irrelevant to our story. Cities are dynamic places, as all planners and developers know, and are always changing. This change is often to the good. Change was certainly a tonic idea for a city block in the industrial area of Dublin, where a K Mart operated until two years ago. Since K Mart closed, the Pac N' Save discount grocery and the Liquor Barn have left, followed by the Salvation Army. (You know things are bad when the second-hand stores bail out.) Last July, Livermore developer Michael Banducci, proprietor of Bancor Development, convinced the Dublin City Council to amend the city's general plan and rezone the block from “retail-office” to “mixed-use.” Banducci's plans for town homes and retail is hardly revolutionary planning, but it is well-executed. The site plan is orderly. There is a central open space with a swimming pool and a clubhouse. The residential portion is mostly row houses, which are unusual for Dublin, even if they are typical of the Bay Area in general. The developer and his designers have varied the widths of the streets to differentiate between the mostly public shopping areas and the somewhat less public areas in front of housing. Best of all, the developer has opted for an open street plan that is permeable to the surrounding community, rather than a paranoid, gated fortress. Tralee features 233 housing units in three housing types: condominium flats over the retail portion of the project, two-story townhouse units divided into 12 separate buildings and located behind the retail buildings, and three-story walk-up, or “stoop-style,” townhouses in clusters of four, five and seven units. Although the project is not a redevelopment project and has no public subsidy, the city required Banducci to set aside 12.5% of the units for low- to moderate-income renters. The plan features alleys, beloved by New Urbanists but still rare in new developments. The townhouse buildings are “alley loaded,” with street-level parking in two-car garages. In the residential-and-retail buildings, the parking is in an underground structure, with elevator access to residential lobbies on floors 1 to 4. I asked Banducci whether he had considered arranging the townhouse units in courtyards, a favorite housing type of mine. “No,” he replied. “I wanted to create direct access to sidewalks as much as possible with the 'eyes on the streets.'” Where that was not possible, he added, “we created a nicely landscaped pedestrian bisecting through the townhouse portion of the project. The entire site, except for the western edge, is surrounded by public sidewalks on the existing streets.” The project also contains 35,000 square feet of commercial space, much of which is to be devoted to “neighborhood-serving” merchants for the benefit of surrounding residents. Completion is set for mid-2006. This is an intelligent and thoughtful project which is pretty good as it is. Insofar as I am writing a critique, let me make a few minor quibbles: While I admire the swimming pool and clubhouse, I would like to see more space for active recreation, such as tennis courts, a basketball hoop or a Little-League-sized ball field, which arguably would get more use than the swimming pool, which is seasonal. Also, I think the developer could, with very little cost or loss of land, provide a jogging path or bike trial around the periphery of the block to provide an alternate means of on-site exercise. I would also like to see more open space near some of the units. In the north-south oriented block of townhouses, immediately north of the existing gas station, there is a fine green space for the east side townhouses - but the townhouses on the west side of the street look out onto a parking lot, not grass. Still, these are quibbles. Overall, the project marks an important breakthrough for Dublin. As for that malarkey about “urban” vs. “suburban,” let us say that the distinction is more imagined than real. The areas we call urban and suburban are both urbanized and differ from each other only in density and, in some cases, in the types and diversity of uses. By ignoring the phony division, developers like Banducci are finding opportunities for themselves while benefiting the cities they work in. I suspect that some of Dublin's elected officials went through a learning curve regarding the concept of urban-infill in their newish, suburban town. The idea of building residential units in a largely industrial area could have been especially difficult to accept, even if everyone was probably delighted to get rid of an obsolete shopping centers. Stubborn suburban attitudes create opportunities for a developer like Banducci, who is working on a second, smaller residential-and-retail project in the same city, this time on the site of Mountain Mike's pizza parlor on San Ramon Road. In the end, there is only one suburbia joke that is always true: You know you're a suburb when . . . you don't know you're really a city.